SUBSTANTIAL CHANGES TO THE NEPA PROCESS PROPOSED

Introduction

On January 10, 2020, the White House Council on Environmental Quality (CEQ) announced in the Federal Register substantial proposed changes to the implementation of the National Environmental Policy Act (NEPA). According to the Administration, the primary goal of the proposed changes is to “modernize, simplify, and accelerate the NEPA process in order to promote public involvement, increase transparency, and enhance the participation of states, tribes, and localities.” These proposed changes follow numerous other regulatory reform proposals targeting streamlining of environmental permitting review processes initiated by the Trump Administration in recent years, including those specifically outlined in the President’s Executive Order 13807 on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects issued on August 15, 2017.

“These proposed changes would have far-reaching implications for how NEPA is currently practiced, including potentially greatly reducing the number and type of private sector actions that fall under NEPA’s purview and the potential for acceleration of the overall NEPA process.”

Background

NEPA was signed into law in 1970 and the CEQ first issued regulations for federal agencies to implement NEPA in 1978. NEPA is a procedural statute that requires federal agencies to consider the potential environmental consequences of proposed actions, such as issuing federal permits or other approvals as well as providing funding for infrastructure, land management activities, and environmental restoration projects. The CEQ has not comprehensively updated the implementing regulations since 1978, aside from one limited substantive amendment in 1986. 

Overview of Key Elements of the Proposed Rule

The published version of the proposed revisions is nearly 50 pages long and includes a wide array of changes to nearly all of the sections of the existing implementing regulations that would have far-reaching implications for how NEPA is implemented. Some of the most substantial proposed changes in several thematic areas would include:

  • Modernization, Simplification, and Acceleration of the NEPA Process
    • Establishing time limits of two years to complete environmental impact statements (EISs) and one year to complete environmental assessments (EAs);
    • Establishing page limits of 150 pages for EISs and 75 pages for EAs;
    • Requiring joint schedules, a single EIS, and a single Record of Decision (ROD) for all EISs involving multiple agencies;
    • Strengthening the role of the lead agency and requiring senior agency officials to have timely resolution of disputes to avoid delays; and
    • Promoting the use of modern technologies for information sharing and public outreach.
  • Clarifying the Application and Scope of NEPA Reviews
    • Providing direction regarding the threshold consideration of whether NEPA applies to a particular action;
    • Clarifying that “major federal action” does not include non-discretionary decisions and non-federal projects (defined as those with minimal federal funding or involvement);
    • Narrowing the definition of environmental effects and clarifying that the “effects” must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action (thus the current practice of analyzing indirect effects would likely not be required);
    • Stating that analysis of cumulative effects is not required under NEPA (this is one of the most significant proposed changes because among other impact topics, it may preclude the need for agencies to analyze greenhouse gas emissions/climate in their NEPA analyses);
    • Clarifying that reasonable alternatives required for NEPA analyses must be technically and economically feasible;
    • Stating that agencies would not need to conduct new scientific and technical research to support impact assessments, and could largely rely on existing information;
    • Requiring earlier solicitation of input from the public to ensure informed decision-making by federal agencies; and
    • Requiring comments to be specific and timely to ensure appropriate consideration.
  • Improve Tribal and State/Local Government Coordination
    • Reducing duplication and facilitating use of documents required by other statutes or prepared by state, tribal, and local agencies to comply with NEPA;
    • Ensuring appropriate consultation with affected tribal governments and agencies; and
    • Eliminating the provisions in the current regulations that limit tribal interests to reservations.
  • Reduce Delays in the NEPA Process
    • Facilitating use of more efficient review processes (including Categorical Exclusions and Environmental Assessments);
    • Allowing agencies to establish procedures for adopting other agencies’ Categorical Exclusions; and
    • Allowing applicants and contractors to assume a greater role in preparing EISs (expanding on the current practice that allows applicants and contractors to prepare draft EAs on their own and submit to federal agencies for their review – effectively eliminating the third-party EIS contracting requirements currently in place).

Conclusion

These proposed changes would have far-reaching implications for how NEPA is currently practiced, including potentially greatly reducing the number and type of private sector actions that fall under NEPA’s purview and the potential for acceleration of the overall NEPA process. However, it is important to note that, at this time, these are only proposed changes to the implementation of NEPA and numerous steps will have to occur for any changes to become finalized. The draft proposal is out for a 60-day public comment period that ends on March 10, 2020. The CEQ will hold public hearings on the proposal in Denver, Colorado, on February 11 and in Washington, DC, on February 25. After the CEQ has reviewed the comments received and made potential revisions to the draft proposal, presumably sometime later this year, they will issue a final version of the revised implementing regulations.

The story doesn’t end there.  Even if a final version of revisions to the regulations are released later this year, it is highly likely, based on the controversial nature of many of the proposed changes, that one or more lawsuits will be filed that challenge the rationale for the changes identified in the rulemaking are “arbitrary and capricious” under the main legal review standard of the Administrative Procedures Act (APA). Such litigation could at minimum result in a delay of implementation of the revisions for a year or more, or permanently if challengers were to ultimately prevail.

In addition, even if the revisions survived such a legal challenge, environmental groups and other potential litigants would likely challenge NEPA analyses for specific projects on the grounds that one or more provisions of the revised rules contradict or are inconsistent with the NEPA Statute.

Thus, finalization of any changes to the NEPA process is not certain, will not likely happen for a year or more, and could potentially increase the amount of uncertainty for project approvals under the NEPA review process.

Ecology and Environment’s environmental permitting experts will track these developments carefully and assist clients in effectively navigating all proposed and finalized changes centered on streamlining the federal environmental review process as they are introduced and implemented.

If you have questions about how these proposed changes to the NEPA process might impact your operations, please contact Ecology and Environment’s Principal, Michael D. Smith, Ph.D, at (415) 398-5326 or msmith@ene.com.

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